CREDIT AGREEMENT among AMERICAN COMMERCIAL LINES LLC, JEFFBOAT LLC, ACL TRANSPORTATION SERVICES LLC, and THE LENDERS NAMED HEREIN and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Security Trustee, Lead Arranger, L/C Issuer, Swing...

 

 

result in a Material Adverse Effect, (iv) maintain, preserve and protect all of its rights to enjoy and use its trademarks, trade names, service marks, patents, copyrights, licenses, leases, franchise agreements and franchise registrations and (v) conduct its business in an orderly manner without voluntary interruption. No Loan Party shall change its jurisdiction of formation.

          (h) Compliance with Laws . Each Loan Party shall comply, and shall cause all other Persons occupying or using such Loan Party’s property to comply, in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including, without limitation, all Environmental Laws, Environmental Permits and all applicable maritime laws), noncompliance with which could have, individually or in the aggregate, a Material Adverse Effect and the inventory of each Loan Party shall comply with the Fair Labor Standards Act.

          (i) New Subsidiaries. The Borrowers shall, at their own expense promptly, and in any event (x) within ten (10) Business Days after the formation or acquisition of any Domestic Subsidiary or any Foreign Subsidiary and (y) within 30 days after the Closing Date with respect to any Phased-Out Entities (except to the extent such Phased-Out Entity has been merged out of existence or dissolved): (A) notify the Administrative Agent of such event in writing (to the extent notice has not already been provided in accordance with Section 5.01(a)(vii)), (B) cause each Domestic Subsidiary and each other Loan Party (other than a Foreign Subsidiary), as applicable, to become a party to the Guaranty, the Environmental Indemnity Agreement, the Security Agreement, the Intellectual Property Security Agreement and each other applicable Security Document in accordance with the terms thereof, execute additional Security Documents if requested by the Administrative Agent and amend the Security Documents as appropriate in light of such event to pledge to the Administrative Agent for the benefit of itself and the Lenders (1) 100% of the Equity Securities of each such Person which becomes a Domestic Subsidiary and (2) 100% of the non-voting Equity Securities (within the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated under the IRC) and 65% of the voting Equity Securities (within the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated under the IRC) of each such Person which becomes a Foreign Subsidiary (provided that, if, as a result of any change in the tax laws of the United States of America after the date of this Agreement, the pledge by any Loan Party of any additional Equity Securities in any such Foreign Subsidiary to the Administrative Agent, on behalf of itself and the Lenders, under the Security Documents would not result in an increase in the aggregate net consolidated tax liabilities of the Loan Parties, then, promptly after the change in such laws, all such additional Equity Securities shall be so pledged under the Security Documents) and execute and deliver all documents or instruments required thereunder or appropriate to perfect the security interest created thereby, (C) deliver (or cause the appropriate Person to deliver) to the Administrative Agent all certificates and other instruments constituting Collateral thereunder free and clear of all adverse claims, accompanied by undated powers or other instruments of transfer executed in blank (and take such other steps as may be requested by the Administrative Agent to perfect the Administrative Agent’s first priority Lien in such Collateral consisting of Equity Securities in compliance with any applicable laws of jurisdictions outside of the United States of America), (D) cause each document (including each Uniform Commercial Code financing statement and each filing with respect to intellectual property owned by each new Domestic Subsidiary) required by law or requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Lenders a valid, legal

and perfected first-priority security interest in and lien on the Collateral subject to the Security Documents to be so filed, registered or recorded and evidence thereof delivered to the Administrative Agent, (E) deliver an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent with respect to each new Domestic Subsidiary, and/or the pledge of the Equity Securities of each Domestic Subsidiary and Foreign Subsidiary and the matters set forth in this Section and (F) deliver to the Administrative Agent the same organization documents, resolutions, certificates, lien searches and other matters set forth in Schedule 3.01(b) and (e) with respect to such New Subsidiary as required to be delivered with respect to the Borrowers on the date hereof, in form and substance satisfactory to Administrative Agent.

          (j) Appraisals. During the existence of an Event of Default or upon the written request of any Lender acting pursuant to any Requirement of Law, the Borrowers agree that the Administrative Agent may, at the expense of the Borrowers, commission an appraisal of any property (i) to which any Loan Party holds legal title (including Vessels) and (ii) which is encumbered by any Security Document; provided that if any such appraisal is conducted due to the written request of any Lender acting pursuant to any Requirement of Law, the Borrowers shall not be obligated to pay for the expense of any such appraisal unless such Requirement of Law applies to Lenders constituting the Required Lenders at such time.

          (k) Additional Collateral.

               (i) If at any time from and after the Closing Date any Loan Party acquires any fee interest in real property, such Loan Party shall deliver to the Administrative Agent, at its own expense, promptly all documentation and information in form and substance reasonably satisfactory to the Administrative Agent (including surveys and environmental reports) to assist the Administrative Agent in obtaining deeds of trust or mortgages on such additional real property and ALTA policies of title insurance, with such endorsements as the Administrative Agent may reasonably require, issued by a company and in form and substance satisfactory to the Administrative Agent, in an amount equal to the principal amount of the Total Revolving Loan Commitment as in effect from time to time, insuring the Administrative Agent’s Lien on such additional real property Collateral to be of first priority, subject only to such exceptions as the Administrative Agent shall approve in its reasonable discretion, with all costs thereof to be paid by the Borrowers.

               (ii) If at any time from and after the Closing Date any Loan Party acquires any Vessel owned by a Loan Party that is documented or in the process of being documented, on a semi- annual basis (by July 15 and January 15 of each calendar year) or more frequently if requested by the Administrative Agent during the continuance of a Default or an Event of Default, such Loan Party shall execute, deliver and record, at its own expense, as soon as possible all documentation and information necessary or appropriate, as determined by the Security Trustee, in form and substance reasonably satisfactory to the Security Trustee to provide the Security Trustee a first priority mortgage on such additional Vessel, subject only to such exceptions as the Administrative Agent shall approve in its reasonable discretion, with all costs thereof to be paid by the Borrowers.

          (l) Vessel Mortgages. The Loan Parties shall within 180 days after the Closing Date (as such time period may be extended by the Administrative Agent in its sole and reasonable discretion up to a total period of 270 days) cause to be delivered to the Administrative Agent (i) evidence in form and substance satisfactory to the Administrative Agent that the Liens in favor of the Security Trustee under the Vessel Security Documents are valid, perfected first priority Liens on all Collateral (consisting of Vessels owned by a Loan Party and referenced in the applicable Vessel Security Document), subject to Permitted Liens and (ii) a favorable written opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Borrowers and the Guarantors addressed to the Administrative Agent for the benefit of the Administrative Agent and the Lenders, covering such legal matters as the Administrative Agent may request with respect to the Vessel Security Documents.

          (m) Real Property Documents. The Loan Parties shall within 90 days after the Closing Date (as such time period may be extended by the Administrative Agent in its sole and reasonable discretion up to a total period of 120 days) deliver each of the items listed below, each in form and substance satisfactory to the Administrative Agent:

               (i) Each Real Property Security Document listed on Schedule 1.01(a) in form and substance satisfactory to the Administrative Agent, shall have each been duly executed and in recordable form and shall have been duly recorded; provided that any Real Property Security Document encumbering the Hall Street Terminal Shall not be recorded until the item satisfying clause (vi) below has been delivered to the Administrative Agent;

               (ii) Evidence that upon the filing of appropriate financing statements and the recording of the Real Property Security Documents the Administrative Agent will have a valid, perfected first priority Lien on all real property Collateral, subject to Permitted Liens;

               (iii) ALTA standard coverage lender’s policy of title insurance (or a commitment therefor) insuring the validity and priority of the Real Property Security Documents listed on Schedule 1.01(a) (subject only to such exceptions as the Administrative Agent may approve), in such amounts and with such endorsements as the Administrative Agent may require, issued by a title insurer acceptable to the Administrative Agent, together with such policies of co-insurance or re-insurance (or commitments therefor) as the Administrative Agent may require;

               (iv) Flood Certificates with respect to all real property Collateral;

               (v) A favorable written opinion from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for the Borrowers and the Guarantors addressed to the Administrative Agent for the benefit of the Administrative Agent, the Security Trustee and the Lenders, covering such legal matters as the Administrative Agent may request with respect to the Real Property Security Documents; and

               (vi) The NRG Intercreditor Agreement, duly executed by the Administrative Agent, the Security Trustee, Louisiana Generating LLC and NRG New Roads Holdings LLC or, if Louisiana Generating LLC and NRG New Roads Holdings LLC have waived the requirement for the NRG Intercreditor Agreement, the written consent of Louisiana

Generating LLC and NRG New Roads Holdings LLC to the Loan Parties granting Liens on the real property underlying the Hall Street Terminal and the personal property located on such real property in favor of the Administrative Agent under the Security Documents.

          (n) Vessel Documentation. The Loan Parties shall cause all Vessels owned by a Loan Party to be documented with the U.S. Coast Guard (including promptly commencing documentation of any Vessel not documented as of the Closing Date or when acquired) other than Vessels that (i) are obsolete as of the Closing Date, (ii) are scheduled for scrap as of the Closing Date or (iii) have a fair market value of less than $5,000,000 in the aggregate as of the Closing Date or during the term this Agreement.

          (o) Certificates of Documentation. The Loan Parties shall within 30 days after the Closing Date (as such time period may be extended by the Administrative Agent in its sole and reasonable discretion up to a total period of 90 days) deliver to the Administrative Agent copies of certificates of documentation of a recent date for all liquid cargo barges and towboats owned by the Loan Parties as of the Closing Date.

     5.02. Negative Covenants. So long as any Loan or L/C Obligation remains unpaid, or any other Obligation (other than contingent indemnity obligations to the extent no claim has been asserted) remains unpaid or unperformed, or any portion of any Commitment remains in force, each Borrower will comply, and will cause compliance by the other Loan Parties, with the following negative covenants, unless the Required Lenders shall otherwise consent in writing:

          (a) Indebtedness. None of the Loan Parties shall create, incur, assume or permit to exist any Indebtedness or engage in any off-balance sheet finance transaction or other similar transaction except for the following (“Permitted Indebtedness”):

               (i) Indebtedness of the Loan Parties under the Credit Documents;

               (ii) Indebtedness of the Loan Parties listed in Schedule 5.02(a) and existing on the date of this Agreement and any Indebtedness of the Loan Parties under initial or successive refinancings of any Indebtedness permitted by this clause (ii); provided that (A) the principal amount of any such refinancing does not exceed the principal amount of the Indebtedness being refinanced and (B) the material terms and provisions of any such refinancing (including maturity, redemption, prepayment, default and subordination provisions) are no less favorable to the applicable Loan Party and the Lenders than the Indebtedness being refinanced;

               (iii) Indebtedness of the Loan Parties under each Rate Contract entered into with respect to the Loans; provided that (A) such Rate Contract is entered into in connection with bona fide hedging operations and not for speculation and (B) the aggregate notional principal amount under all such Rate Contracts does not exceed the Effective Amount of the Total Revolving Loan Commitment at any time;

               (iv) Indebtedness of the Loan Parties with respect to surety, appeal, indemnity, performance or other similar bonds in the ordinary course of business (including surety or similar bonds issued in connection with the stay of a proceeding of the type described in Section 6.01(h));

               (v) Guaranty Obligations of any Loan Party in respect of Permitted Indebtedness of any other Loan Party;

               (vi) Indebtedness owing to any other Loan Parties; provided that the Investment constituting such Indebtedness is permitted by Section 5.02(e)(iii);

               (vii) purchase money Indebtedness and Capital Lease obligations in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding;

               (viii) Subordinated Obligations incurred after the Closing Date; provided that such Indebtedness is on terms and conditions and pursuant to documentation (including rate, tenor, amount, security and subordination) reasonably satisfactory to the Required Lenders and the Required Lenders consent thereto is evidenced in writing; and

               (ix) Maritime Administration Financing Indebtedness and other additional Indebtedness (including Indebtedness of the Loan Parties under Lender Bank Products) in an aggregate principal amount not to exceed $25,000,000 at any one time outstanding (to the extent not permitted any other clause of this Section 5.02(a)).

          (b) Liens. No Loan Party shall create, incur, assume or permit to exist any Lien or Negative Pledge on or with respect to any of its assets or property of any character, whether now owned or hereafter acquired, except for the following (“Permitted Liens”):

               (i) Liens in favor of the Administrative Agent, the Security Trustee or any Lender securing the Obligations and Negative Pledges under the Credit Documents;

               (ii) Liens listed in Schedule 5.02(b) and existing on the date of this Agreement and any replacement Liens (covering the same or a lesser scope of property) in respect of replacement Indebtedness permitted under Section 5.02(a)(ii);

               (iii) Liens for taxes or other Governmental Charges not at the time delinquent or thereafter payable without penalty or being contested in good faith and by appropriate proceedings; provided that adequate reserves for the payment thereof have been established in accordance with GAAP and no property of any Loan Party is subject to impending risk of loss or forfeiture by reason of nonpayment of the obligations secured by such Liens;

               (iv) Liens of carriers, warehousemen, mechanics, materialmen, vendors, and landlords and other similar Liens imposed by law incurred in the ordinary course of business for sums which are not overdue more than 60 days or are being contested in good faith and by appropriate proceedings; provided that adequate reserves for the payment thereof have been established in accordance with GAAP;

               (v) Deposits under workers’ compensation, unemployment insurance and social security laws or to secure the performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or to secure statutory obligations of surety or appeal bonds or to secure indemnity, performance or other similar bonds in the ordinary course of business; and

               (vi) Purchase money Liens and associated Negative Pledges on property acquired using the proceeds of Indebtedness and Capital Leases permitted under Section 5.02(a)(vii); and

               (vii) Liens incurred in connection with the extension, renewal or refinancing of the Indebtedness secured by the Liens described in clause (ii) or (vi) above; provided that any extension, renewal or replacement Lien (A) is limited to the property covered by the existing Lien and (B) secures Indebtedness which is no greater in amount and has material terms no less favorable to the Lenders than the Indebtedness secured by the existing Lien;

               (viii) any judgment Lien not giving rise to an Event of Default;

               (ix) leases or subleases granted to others (in the ordinary course of business consistent with past practices) not interfering in any material respect with the ordinary conduct of the business or operations of any Loan Party;

               (x) easements, rights-of-way, restrictions, minor defects, encroachments or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the ordinary conduct of the business of any Loan Party;

               (xi) deposits in the ordinary course of business to secure liabilities to insurance carriers, lessor, utilities and other service providers;

               (xii) bankers liens and rights of setoff with respect to customary depository arrangements entered into in the ordinary course of business;

               (xiii) Liens arising by reason of security for surety or appeal bonds in the ordinary course of business of any Loan Party;

               (xiv) Liens incurred with respect to Subordinated Obligations permitted under Section 5.02(a)(viii) to the extent the Required Lenders expressly permit any such Liens when consenting to any such Subordinated Obligations pursuant to Section 5.02(a)(viii);

               (xv) Liens on the real property subject to any of the Real Property Security Documents identified in the ALTA title policy received by the Administrative Agent (in form and substance satisfactory to the Administrative Agent ) relating to such real property;

               (xvi) Liens incurred with respect to the Indebtedness permitted under Section 5.02(a)(ix);

               (xvii) Liens permitted under the Vessel Mortgages; and

               (xviii) (A) Liens granted by a third party purchaser on such third party purchaser’s interest in a vessel to be constructed by a Loan Party and purchased by such third party purchaser in favor of a third party financier that is financing such purchaser’s purchase of such vessel and (B) Negative Pledges on such vessel to be constructed that are granted by the Loan Parties under the agreement for the construction of such vessel;

provided, however, that the foregoing exceptions shall not permit any Lien in any Equity Securities issued by any Loan Party (other than Parent) and owned by any Loan Party, except for Liens in favor of the Administrative Agent securing the Obligations or any guaranty thereof.

          (c) Asset Dispositions. No Loan Party shall, directly or indirectly, sell, lease, charter, convey, transfer or otherwise dispose (including, without limitation, via any sale and leaseback transaction and via any disposition in connection with the exercise of remedies by NRG with respect to certain liens held by NRG on the Hall Street Terminal which secure certain of ACL’s obligations to NRG) of any of its assets or property, whether now owned or hereafter acquired, except for the following:

               (i) Sales, leases or other dispositions by the Loan Parties of inventory in the ordinary course of their businesses (excluding sales of inventory by any Loan Party, directly or indirectly, to another Loan Party) including any sale by Jeffboat of barges and other equipment in a Jeffboat Sale and Leaseback Transaction;

               (ii) Sales, leases or other dispositions by the Loan Parties of damaged, worn or obsolete equipment in the ordinary course of their businesses for not less than fair market value;

               (iii) Sales or other dispositions by any Loan Party of Investments permitted by clause (i) of Section 5.02(e) for not less than fair market value; provided that no Default or Event of Default shall have occurred and be continuing and the proceeds of such sale or other disposition are retained as working capital with such Loan Party;

               (iv) Sales or other dispositions of assets and property by the Borrowers to any Guarantor (other than Parent or Commercial Barge Line Company) or by any Guarantor to the Borrowers or another Guarantor (other than Parent or Commercial Barge Line Company); provided that the terms of any such sales or other dispositions by or to the Borrowers or any Guarantor are terms which are no less favorable to the Borrowers or any Guarantor than would prevail in the market for similar transactions between unaffiliated parties dealing at arm’s length; and

               (v) Additional sales, leases or other disposition of assets or property by the Loan Parties not to exceed (A) $50,000,000 of assets valued at fair market value in the aggregate per calendar year or (B) $150,000,000 of assets valued at fair market value in the aggregate during the term of this Agreement.

          (d) Mergers, Acquisitions, Etc. No Loan Party shall reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to merge into it, acquire any Person as a new Subsidiary or acquire all or substantially all of the assets of any other Person, except for the following:

               (i) (A) the Borrowers and the other Loan Parties (other than Parent or Commercial Barge Line Company) may merge with each other; provided that (A) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to any such merger and (B) in any such merger involving a Borrower and another Loan Party (other than another Borrower), such Borrower is the surviving Person; and (B) Parent and Commercial

Barge Line Company may merge with each other and American Barge Line Company may merge with and into Commercial Barge Line Company; provided that (A) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to any such merger and (B) in any such merger involving Parent, Parent is the surviving Person;

               (ii) Acquisitions by a Borrower or a Guarantor of any Person or the assets of a Person as a new Subsidiary or of all or substantially all of the assets of any other Person or identifiable business unit or division of any other Person (in each case, the “Proposed Target”); provided that, unless otherwise agreed to in writing by the Administrative Agent (with the written approval of the Required Lenders) with respect to any of the below requirements in connection with a particular acquisition:

                    (A) No Default or Event of Default has occurred and is continuing on the date of, or will result after giving effect to, any such acquisition (actually and on a pro forma basis);

                    (B) The property acquired (or the property of the Proposed Target) in such acquisition is ancillary to, reasonably related to, or used or useful in, the same or a similar line of business as the Borrowers and their Subsidiaries;

                    (C) The acquisition of the Proposed Target shall be completed as a result of an arm’s length negotiation (i.e. on a non-hostile basis) (unless otherwise agreed to in writing by the Required Lenders with respect to a particular acquisition as noted above);

                    (D) The acquisition of the Proposed Target shall be consummated, in all material respects, in accordance with all applicable laws and all applicable Governmental Authorizations;

                    (E) For each acquisition where the total consideration exceeds $50,000,000, the Borrowers shall have delivered to the Administrative Agent subject to Section 8.10, (1) (x) financial statements of the subject of such acquisition that is a separate Person (or is an acquisition of all the assets of a Person) to the extent available, but in no event for less than the immediately preceding twelve months or (y) in the case of an acquisition of assets constituting less than all of the assets of a Person, the equivalent of financial statements with respect to such assets or, if no such financial statements are available, an appraisal or other valuation of the assets to be acquired, (2) pro forma financial statements reflecting the combined projected performance of the Loan Parties during the 12 months immediately following consummation of such transaction, certified to the Administrative Agent and the Lenders as being the good faith projections of the Borrowers, in form and detail reasonably acceptable to the Administrative Agent, which projections shall show that such acquisition will not result in any Default or Event of Default hereunder and (3) such additional reasonable information as requested by the Lenders regarding the acquisition;

                    (F) The Borrowers shall be in compliance with the financial covenants set forth in this Agreement on a pro forma basis after giving effect to the acquisition of the Proposed Target as if such acquisition occurred on the last day of the fiscal quarter most recently ended;

                    (G) The Administrative Agent shall prior to the proposed acquisition date have received a Compliance Certificate evidencing pro forma compliance as described in clause (F) above;

                    (H) If a Proposed Target is organized or domiciled under the law of any jurisdiction outside the United States, or a Proposed Target has more than 10% of its assets or annual revenues based in or from outside of the United States (as determined from the most recently available financial information for the Proposed Target), then such Proposed Target’s Adjusted EBITDA shall be discounted for covenant compliance to the extent the Administrative Agent cannot obtain perfected liens on its assets;

                    (I) The Proposed Target shall be owned directly by the Borrowers or, if the Proposed Target remains a separate entity, be a wholly-owned Subsidiary of a Borrower after giving effect to the acquisition;

                    (J) The Administrative Agent and the Security Trustee (as applicable) shall hold a perfected, first priority security interest in and lien on all of the assets acquired by a Borrower or a Guarantor in such transaction (including but not limited to the assets of the Proposed Target, subject only to Permitted Liens and, if the Proposed Target survives such transaction as a separate Subsidiary, any Equity Securities in the Proposed Target to the extent required by Section 5.01(i)); and

                    (K) If such Proposed Target remains a separate Subsidiary, all action required of the Loan Parties under Section 5.01(i) shall be completed substantially concurrently with the consummation of such acquisition or, if requested by the Administrative Agent, such Proposed Target (and any Subsidiary of the Proposed Target acquired as part of the acquisition) shall be a party to the Credit Documents as a borrower substantially concurrently with the consummation of such acquisition pursuant to documentation in form and substance satisfactory to the Administrative Agent.

          (e) Investments. None of the Loan Parties shall make any Investment except for Investments in the following:

               (i) Investments by the Loan Parties in deposit accounts, cash and Cash Equivalents; provided that, for Investments of the Borrower and each Guarantor, such Investments are subject to a Control Agreement (other than up to 10 accounts for all Borrowers and Guarantors in the aggregate where such account have an average aggregate monthly balance of less than $1,000,000);

               (ii) Investments listed in Schedule 5.02(e) existing on the date of this Agreement;

               (iii) Investments by the Loan Parties in each other (other than Parent and Commercial Barge Line Company); provided that any Investments constituting Indebtedness shall be evidenced by one or more Pledged Intercompany Notes subject to a first perfected security interest in favor of the Administrative Agent and in the Administrative Agent’s possession; provided further that Investments (including any loans or advances) by Loan Parties

made directly or indirectly in Foreign Subsidiaries may not exceed $30,000,000 in the aggregate at any one time;

               (iv) Investments permitted by Section 5.02(d) and Investments that comply with both Section 5.02(a)(iii) and Section 5.02(l);

               (v) In addition to Investments otherwise expressly permitted by this Section 5.02(e) (provided no Event of Default then exists or results therefrom), Investments by the Borrower and its Domestic Subsidiaries in Joint Ventures which are organized under the laws of the United States of America or any state thereof in an aggregate amount (valued at cost) not to exceed $50,000,000 as to any such Joint Venture or $100,000,000 in the aggregate as to all such Joint Ventures since the date of this Agreement;

               (vi) Loans and advances to employees in the ordinary course of business and in accordance with past practices not to exceed $5,000,000 in the aggregate at any one time;

               (vii) Investments by Parent in treasury Equity Securities of Parent; and

               (viii) Additional Investments not to exceed $5,000,000 in the aggregate at any one time (to the extent not permitted any other clause of this Section 5.02(e)).

          (f) Distributions, Redemptions, Etc. No Loan Party shall reorganize, recapitalize or make any Distributions or set apart any sum for any such purpose except as follows:

               (i) Any Subsidiary of a Borrower may pay dividends on its Equity Securities to a Borrower or any intervening Subsidiary;

               (ii) If no Default or Event of Default shall have occurred and be continuing or would result from a proposed Distribution under this Section 5.02(f)(ii) and so long as any Borrower is a limited liability company or any other pass-through entity for tax purposes, each Borrower may, on a quarterly basis, make cash Distributions to Parent (through any intervening Loan Parties) in an amount equal to the minimum amount necessary to pay for estimated income taxes owing by Parent attributable to the income of such Borrower (less the amount of any prior Distribution for such purpose that was not necessary to pay the actual taxes of such holders);

               (iii) The Borrowers may make Distributions pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrowers and their respective Subsidiaries, including, without limitation, pursuant to any severance packages for management or employees of the Borrowers and their respective Subsidiaries and approved by the board of managers (or other governing body) of the Borrower making such Distribution; and

               (iv) Any Loan Party may make Distributions if (1) no Default or Event of Default has occurred and is continuing or would result from such Distribution; and (2) the Borrowers provide the Administrative Agent a certificate from a Responsible Officer certifying

that there is pro forma compliance with the financial covenants in Section 5.03 after giving effect to such Distributions.

          (g) Change in Business. No Loan Party shall engage, either directly or indirectly through Affiliates, in any business substantially different from the business of the Borrowers as of the Closing Date.

          (h) Payments of Indebtedness, Etc. No Loan Party shall:

               (i) prepay, redeem, purchase, defease, acquire or otherwise satisfy (or offer to redeem, purchase, acquire or otherwise satisfy) in any manner prior to the scheduled payment thereof any Indebtedness (including any Subordinated Obligations) or lease obligations of any Loan Party (other than (A) the Obligations and (B) the prepayment of any Indebtedness incurred in accordance with Section 5.02(a)(vii) so long as no Default or Event of Default exists at the time of such proposed prepayment of any Indebtedness incurred in accordance with Section 5.02(a)(vii) or would result therefrom); or make any payment or deposit any monies, securities or other property with any trustee or other Person that has the effect of providing for the satisfaction (or assurance of any satisfaction) of any Indebtedness (including any Subordinated Obligations) of any Loan Party prior to the date when due or otherwise to provide for the defeasance of any such Indebtedness;

               (ii) pay or prepay any principal, premium, interest or any other amount (including sinking fund payments) with respect to any Subordinated Obligation (except payments expressly approved by the Required Lenders in writing), or redeem purchase, defease, acquire or otherwise satisfy (or offer to redeem, purchase, acquire or otherwise satisfy) any Subordinated Obligations; or make any payment or deposit any monies, securities or other property with any trustee or other Person that has the effect of providing for the satisfaction (or assurance of any satisfaction) of any Subordinated Obligations prior to the date when due or otherwise to provide for the defeasance of any Subordinated Obligations; or

               (iii) supplement, modify, amend, restate, extend or otherwise change the terms of any document, instrument or agreement evidencing or governing any Subordinated Obligations;

provided, however, that any Loan Party may prepay, redeem, purchase, defease, acquire or otherwise satisfy (or offer to redeem, purchase, acquire or otherwise satisfy) in any manner prior to the scheduled payment thereof any Indebtedness (including any Subordinated Obligations) or lease obligations of any Loan Party if (1) no Default or Event of Default has occurred and is continuing or would result from such prepayment, redemption, purchase, defeasance, acquisition or other satisfaction of such Indebtedness; (2) with respect to Subordinated Obligations, such prepayment, redemption, purchase, defeasance, acquisition or other satisfaction of such Subordinated Obligations is otherwise permitted under the applicable intercreditor agreement or subordination provisions applicable to such Subordinated Obligations; (3) before and after giving effect to such prepayment, redemption, purchase, defeasance, acquisition or other satisfaction of such Indebtedness, the Total Leverage is less than 2.50 to 1.00; and (4) prior to taking such action the Borrowers provide the Administrative Agent a certificate from a Responsible Officer certifying that the conditions under clauses (1), (2) and (3) above are satisfied and there is pro

forma compliance with the financial covenants in Section 5.03 after giving effect to such prepayment, redemption, purchase, defeasance, acquisition or other satisfaction of such Indebtedness.

          (i) ERISA.

               (i) No Loan Party nor any ERISA Affiliate shall (A) adopt or institute any Pension Plan; (B) take any action which will result in the partial or complete withdrawal, within the meanings of Sections 4203 and 4205 of ERISA, from a Multiemployer Plan; (C) engage or permit any Person to engage in any transaction prohibited by Section 406 of ERISA or Section 4975 of the IRC involving any Pension Plan or Multiemployer Plan which would subject a Loan Party or any ERISA Affiliate to any tax, penalty or other liability including a liability to indemnify; (D) incur or allow to exist any accumulated funding deficiency (within the meaning of Section 412 of the IRC or Section 302 of ERISA); (E) fail to make full payment when due of all amounts due as contributions to any Pension Plan or Multiemployer Plan; (F) fail to comply with the requirements of Section 4980B of the IRC or Part 6 of Title I(B) of ERISA; or (G) adopt any amendment to any Pension Plan which would require the posting of security pursuant to Section 401(a)(29) of the IRC, where singly or cumulatively, the above could have a Material Adverse Effect.

               (ii) No Loan Party shall (A) engage in any transaction prohibited by any Governmental Rule applicable to any Foreign Plan; (B) fail to make full payment when due of all amounts due as contributions to any Foreign Plan; or (C) otherwise fail to comply with the requirements of any Governmental Rule applicable to any Foreign Plan, where singly or cumulatively, the above could have a Material Adverse Effect.

          (j) Transactions With Affiliates. No Loan Party shall enter into or permit to exist any Contractual Obligation with any Affiliate (other than any other Loan Party) or engage in any other transaction with any Affiliate (other than any other Loan Party) except upon terms at least as favorable to such Loan Party as an arms-length transaction with unaffiliated Persons.

          (k) Accounting Changes. No Loan Party shall change (i) its fiscal year (currently January 1 through December 31) or (ii) its accounting practices except as required by GAAP.

          (l) Rate Contracts. No Loan Party shall enter into any Rate Contract, except (i) Rate Contracts entered into to hedge or mitigate risks to which the Borrowers or any Subsidiary has actual exposure (other than those in respect of Equity Securities of the Borrowers or any Subsidiary of a Borrower), and (ii) Rate Contracts entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of a Borrower or any Subsidiary.

          (m) Amendment of Material Documents. No Loan Party shall agree to amend, modify, supplement or replace any Material Document or any document executed and delivered in connection therewith, in each case in a manner which would adversely affect the interests of

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the Administrative Agent, the Security Trustee and the Lenders and in any event subject to Section 5.02(h) with respect to Subordinated Obligations.

          (n) Restrictive Agreements. No Loan Party shall agree to any restriction or limitation (other than as set forth in this Agreement or the other Credit Documents) on the making of Distributions or the transferring of asset from any Loan Party to another Loan Party.

          (o) Joint Ventures. No Loan Party shall enter into or maintain any interest in any Joint Venture; provided, however, that the Borrowers may enter into and maintain an interest in:

               (i) the following existing Joint Ventures: BargeLink LLC (owning up to 50% of the Equity Securities of such entity), Bolivar Terminal Company (owning up to 50% of the Equity Securities of such entity), T.T. Barge Services Mile 237 LLC (owning up to 35% of the Equity Securities of such entity), and SSIC Remediation LLC (owning up to 30.29% of the Equity Securities of such entity), and

               (ii) additional Joint Ventures if (A) the aggregate Investment by the Borrowers and their Subsidiaries in all Joint Ventures is permitted by Section 5.02(e)(v), (B) the business of such additional Joint Venture is ancillary to, reasonably related to, or used or useful in, the same or a similar line of business as the Borrowers and their Subsidiaries and (C) such additional Joint Venture is a corporation, limited liability company or other limited liability entity.

          (p) Accounts. No Loan Party shall fail, within 30 days of the Borrowers’ receipt of a written request from the Administrative Agent (as such time period may be extended by the Administrative Agent), to execute and deliver to the Administrative Agent control agreements in form and substance reasonably acceptable to the Administrative Agent with respect to each account of the Loan Parties which is existing as of the Closing Date (to the extent the Borrowers have not already done so) or opened following the Closing Date with any bank, savings association, financial institution or similar financial intermediary in which cash or other property will be deposited (other than with respect to accounts fall within the exception described in Section 5.02(e)(i)).

          (q) Modification. None of the Loan Parties shall make any modification or repairs to, or replacement of, any of the Vessels owned by a Loan Party or equipment installed on such Vessel which would or might materially alter the structure, type or performance characteristics of such Vessel and materially reduce its value.

     5.03. Financial Covenants. So long as any Loan or L/C Obligation remains unpaid, or any other Obligation remains unpaid or unperformed, or any portion of any Commitment remains in force, the Borrowers will comply, and will cause compliance, with the following financial covenants, unless the Required Lenders shall otherwise consent in writing:

          (a) Total Leverage Ratio. The Borrowers shall not at any time permit the Total Leverage Ratio to be greater than 3.00 to 1.00; provided that if (i) any Permitted Acquisition is consummated after the Closing Date and (ii) as of the closing date of any such Permitted Acquisition the Total Leverage Ratio is actually greater than 2.50 to 1.00 or is greater

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than 2.50 to 1.00 on a pro forma basis after giving effect to such Permitted Acquisition, the maximum ratio shall be 3.50 to 1.00 for twelve consecutive months beginning on the date of such Permitted Acquisition is consummated (and the maximum ratio shall revert to 3.00 to 1.00 after the end of such twelve month period).

          (b) Fixed Charge Coverage Ratio. The Borrowers shall not permit the Fixed Charge Coverage Ratio as at the end of any fiscal quarter to be less than 1.50 to 1.00.

          (c) Minimum Net Worth. The Borrowers shall not permit Net Worth as of the last day of any fiscal quarter (such date to be referred to herein as a “Determination Date”) which occurs after the Closing Date to be less than the sum on such Determination Date of the following:

               (i) $304,854,704.35; plus

               (ii) Fifty percent (50%) of the cumulative sum of the Loan Parties’ annual consolidated Net Income for each fiscal quarter of the Borrower ending after December 31, 2006 through and including the fiscal year ending immediately prior to the Determination Date (excluding any quarter in which net income is negative); plus

               (iii) One-hundred percent (100%) of the Net Proceeds from the issuance of Equity Securities by Parent or any other Loan Party the proceeds of which are received from a Person that is not a Loan Party from and after December 31, 2006.

ARTICLE VI. EVENTS OF DEFAULT.

     6.01. Events of Default. The occurrence or existence of any one or more of the following shall constitute an “Event of Default” hereunder:

          (a) Non-Payment. Any Loan Party shall (i) fail to pay when due any principal of any Loan or any L/C Obligation (including any amount due in respect thereof under the Guaranty) or (ii) fail to pay within three (3) days after the same becomes due, any interest, fees or other amounts payable under the terms of this Agreement or any of the other Credit Documents (including any amount due under any Lender Rate Contract and, to the extent not included in clause (i), the Guaranty); or

          (b) Specific Defaults. Any Loan Party shall fail to observe or perform any covenant, obligation, condition or agreement set forth in Section 5.01(a), Section 5.01(f), Section 5.01(g), Section 5.01(h), Section 5.01(i), Section 5.01(k), Section 5.01(l), Section 5.01(m), Section 5.02 or Section 5.03; or

          (c) Other Defaults. Any default shall occur under the Guaranty or any Security Document and such default shall continue beyond any period of grace provided with respect thereto; or any Loan Party shall fail to observe or perform any other covenant, obligation, condition or agreement contained in this Agreement or any other Credit Document (other than Lender Rate Contracts) and such failure shall continue for thirty (30) days after the date of such failure; or

          (d) Representations and Warranties. Any representation, warranty, certificate, information or other statement (financial or otherwise) made or furnished by or on behalf of any Loan Party to the Administrative Agent, the Security Trustee or any Lender in or in connection with this Agreement or any of the other Credit Documents, or as an inducement to the Administrative Agent, the Security Trustee or any Lender to enter into this Agreement, shall be false, incorrect, incomplete or misleading in any material respect when made or furnished; or

          (e) Cross-Default. (i) Any Loan Party shall fail to make any payment on account of any Indebtedness or Contingent Obligation of such Person (other than the Obligations) when due (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and such failure shall continue beyond any period of grace provided with respect thereto, if the amount of such Indebtedness or Contingent Obligation exceeds $25,000,000 or the effect of such failure is to cause, or permit the holder or holders thereof to cause, Indebtedness and/or Contingent Obligations of any Loan Party (other than the Obligations) in an aggregate amount exceeding $25,000,000 to become redeemable, due, liquidated or otherwise payable (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and/or to be secured by cash collateral or (ii) any Loan Party shall otherwise fail to observe or perform any agreement, term or condition contained in any agreement or instrument relating to any Indebtedness or Contingent Obligation of such Person (other than the Obligations), or any other event shall occur or condition shall exist, if the effect of such failure, event or condition is to cause, or permit the holder or holders thereof to cause, Indebtedness and/or Contingent Obligations of any Loan Party (other than the Obligations) in an aggregate amount exceeding $25,000,000 to become redeemable, due, liquidated or otherwise payable (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and/or to be secured by cash collateral; or

          (f) Insolvency; Voluntary Proceedings. Any Loan Party shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) be unable, or admit in writing its inability, to pay its debts generally as they mature, (iii) make a general assignment for the benefit of its or any of its creditors, (iv) be dissolved or liquidated in full or in part, (v) become insolvent (as such term may be defined or interpreted under any applicable statute), (vi) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or, in each case, any analogous procedure or step is taken in any jurisdiction; or

          (g) Involuntary Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of any Loan Party or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to any Loan Party or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within sixty (60) days of commencement, or, in each case, any analogous procedure or step is taken in any jurisdiction; or

          (h) Judgments. (i) One or more judgments, orders, decrees or arbitration awards requiring any Loan Party to pay an aggregate amount of $25,000,000 or more (exclusive of amounts covered by insurance issued by an insurer not an Affiliate of the Borrowers and otherwise satisfying the requirements set forth in Section 5.01(d)) shall be rendered against any Loan Party in connection with any single or related series of transactions, incidents or circumstances and the same shall not be satisfied, vacated or stayed for a period of ten (10) consecutive days; provided that if one or more judgments, orders, decrees or arbitration awards requiring any Loan Party to pay an aggregate amount of $50,000,000 (exclusive of amounts covered by insurance issued by an insurer not an Affiliate of the Borrowers and otherwise satisfying the requirements set forth in Section 5.01(d)) shall be rendered against any Loan Party in connection with any single or related series of transactions, incidents or circumstances such circumstance shall be an Event of Default whether or not the same has been satisfied, vacated or stayed; (ii) any judgment, writ, assessment, warrant of attachment, tax lien or execution or similar process shall be issued or levied against a part of the property of any Loan Party with an aggregate value in excess of $25,000,000 and the same shall not be released, stayed, vacated or otherwise dismissed within thirty (30) days after issue or levy; or (iii) any other judgments, orders, decrees, arbitration awards, writs, assessments, warrants of attachment, tax liens or executions or similar processes which, alone or in the aggregate, could have a Material Adverse Effect are rendered, issued or levied; or

          (i) Credit Documents. Any Credit Document or any material term thereof shall cease to be, or be asserted by any Loan Party not to be, a legal, valid and binding obligation of such Loan Party enforceable in accordance with its terms or shall otherwise cease to be in full force and effect; or

          (j) Security Documents. Any Lien intended to be created by any Security Document shall at any time be invalidated, subordinated or otherwise cease to be in full force and effect, for whatever reason, or any security interest purported to be created by any Security Document shall cease to be, or shall be asserted by any Loan Party not to be, a valid, first priority (except as expressly otherwise provided in this Agreement or such Security Document) perfected Lien in the Collateral covered thereby, or any Loan Party shall issue, create or permit to be outstanding any Equity Securities which shall not be subject to a first priority perfected Lien under the Security Documents; or

          (k) ERISA. Any Reportable Event which the Administrative Agent reasonably believes in good faith constitutes grounds for the termination of any Pension Plan by the PBGC or for the appointment of a trustee by the PBGC to administer any Pension Plan shall occur and be continuing for a period of thirty (30) days or more after notice thereof is provided to the Borrowers by the Administrative Agent, or any Pension Plan shall be terminated within the meaning of Title IV of ERISA by the PBGC or a trustee shall be appointed by the PBGC to administer any Pension Plan; or

          (l) Change of Control. Any Change of Control shall occur; or

          (m) Involuntary Dissolution or Split Up. Any order, judgment or decree shall be entered against a Borrower decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of sixty (60) days; or

          (n) Lender Rate Contracts. The occurrence of a default by any Loan Party under any Lender Rate Contract and the passage of any applicable grace period in respect thereof; or

          (o) Material Adverse Change. A material adverse change in the operations, business or condition (financial or otherwise) of any Borrower individually or the Loan Parties (taken as a whole) since December 31, 2006 shall have occurred; or

          (p) Guarantors. Any Guarantor shall repudiate or purport to revoke the Guaranty; or

          (q) Designated Person. Any Loan Party shall become a Designated Person; or

          (r) Subordinated Obligations. Any trustee for, or any holder of, any Subordinated Obligations asserts in writing that any such Subordinated Obligations (or any portion thereof) is not subordinated to the Obligations in accordance with its terms or the applicable subordination agreement (in the case of such other Subordinated Obligations); or any event occurs which gives the holder or holders of such Subordinated Obligations (or an agent or trustee on its or their behalf) the right to declare such Subordinated Obligations due before the date on which it otherwise would become due, or the right to require the issuer thereof, to redeem, purchase or otherwise defease, or offer to redeem, purchase or otherwise defease, all or any portion of any Subordinated Obligations, or a final judgment is entered by a court of competent jurisdiction that any Subordinated Obligations (or any portion thereof) is not subordinated in accordance with its terms or the applicable subordination agreement (in the case of such other Subordinated Obligations) to the Obligations, or

          (s) NRG Agreements. The occurrence of (i) a Trigger Event (as such term is defined in any one or more of the NRG Agreements), (ii) the passage of any applicable notice period under the NRG Agreements, and (iii) the enforcement or exercise by NRG of its rights under the NRG Agreements in connection with such Trigger Event.

     6.02. Remedies. At any time after the occurrence and during the continuance of any Event of Default (other than an Event of Default referred to in Section 6.01(f) or 6.01(g)), the Administrative Agent may or shall, upon instructions from the Required Lenders, by written notice to the Borrowers, (a) terminate the Revolving Loan Commitments, any obligation of the L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders to make Loans, and/or (b) declare all or a portion of the outstanding Obligations (other than in connection with Lender Rate Contracts) payable by the Borrowers to be immediately due and payable and require that the Borrowers Cash Collateralize the Obligations in an amount equal to 105 % of the then Effective Amount of the L/C Obligations, in each case, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the Notes to the contrary notwithstanding . Upon the occurrence or existence of any Event of Default described in Section 6.01(f) or 6.01(g), immediately and without notice, (1) the Revolving Loan Commitments, any obligation of the L/C Issuer to make L/C Credit Extensions and the obligations of the Lenders to make Loans shall automatically terminate, (2) the obligation of the Borrowers to Cash Collateralize the Obligations in an amount equal to the then Effective Amount of the L/C Obligations shall automatically become effective, which amounts

shall be immediately pledged and delivered to the Administrative Agent as security for the Obligations and (3) all outstanding Obligations payable by the Borrowers hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the Notes to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, the Administrative Agent and the Security Trustee may exercise any other right, power or remedy available to it under any of the Credit Documents or otherwise by law, either by suit in equity or by action at law, or both. Notwithstanding anything to the contrary in the Credit Documents, all Cash Collateral shall first be applied to the L/C Obligations and then to the remaining obligations in the manner set forth in the Credit Documents.

ARTICLE VII. ADMINISTRATIVE AGENT, THE SECURITY TRUSTEE AND RELATIONS AMONG LENDERS.

     7.01. Appointment, Powers and Immunities.

          (a) Each Lender (on its own behalf and on behalf of any Affiliate of such Lender that is party to a Lender Rate Contract or providing Lender Bank Products) hereby appoints and authorizes ▇▇▇▇▇ Fargo and its successors to act as its administrative agent hereunder and under the other Credit Documents and as security trustee under the Vessel Security Documents with such powers as are expressly delegated to the Administrative Agent and the Security Trustee by the terms of this Agreement and the other Credit Documents, together with such other powers as are reasonably incidental thereto. Each Lender (on its own behalf and on behalf of any Affiliate of such Lender that is party to a Lender Rate Contract or providing Lender Bank Products) hereby authorizes the Administrative Agent and the Security Trustee to take such action on its behalf under the provisions of this Agreement and the other Credit Documents and to exercise such powers as are set forth herein or therein, together with such other powers as are reasonably incidental thereto. The Co-Syndication Agents, Co-Documentation Agents and Lead Arranger shall not have any duties or responsibilities or any liabilities under this Agreement or any other Credit Documents and any amendments, consents, waivers or any other actions taken in connection with this Agreement or the other Credit Documents shall not require the consent of any of the Co-Syndication Agents, Co-Documentation Agents or Lead Arranger in such capacity. The Administrative Agent and the Security Trustee shall not have any duties or responsibilities except those expressly set forth in this Agreement or in any other Credit Document, be a trustee for any Lender (or any Affiliate of a Lender that is party to a Lender Rate Contract or providing Lender Bank Products) or have any fiduciary duty to any Lender (or any Affiliate of a Lender that is party to a Lender Rate Contract or providing Lender Bank Products). Notwithstanding anything to the contrary contained herein the Administrative Agent and the Security Trustee shall not be required to take any action which is contrary to this Agreement or any other Credit Document or any applicable Governmental Rule. None of the Administrative Agent, the Security Trustee or any Lender shall be responsible to any other Lender for any recitals, statements, representations or warranties made by any Loan Party contained in this Agreement or in any other Credit Document, for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Credit Document or for any failure by any Loan Party to perform its obligations hereunder or thereunder. The Administrative Agent and the Security Trustee may employ agents and

attorneys-in-fact and shall not be responsible to any Lender for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. None of the Administrative Agent, the Security Trustee or any of their respective directors, officers, employees, agents or advisors shall be responsible to any Lender for any action taken or omitted to be taken by it or them hereunder or under any other Credit Document or in connection herewith or therewith, except to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen from its or their own gross negligence or willful misconduct. Except as otherwise provided under this Agreement, the Administrative Agent and the Security Trustee shall take such action with respect to the Credit Documents as shall be directed by the Required Lenders or in the absence of such direction such action as the Administrative Agent and the Security Trustee in good ▇▇▇▇▇ ▇▇▇▇▇ advisable under the circumstances.

          (b) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith until such time (and except for so long) as the Administrative Agent may agree at the request of the Required Lenders to act for the L/C Issuer with respect thereto; provided, however, that the L/C Issuer shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article VII with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and the application and agreements for letters of credit pertaining to the Letters of Credit as fully as if the term “Administrative Agent” as used in this Article VII included the L/C Issuer with respect to such acts or omissions, and (ii) as additionally provided herein with respect to the L/C Issuer.

          (c) The Security Trustee shall act on behalf of the Lenders (which, for the avoidance of doubt, includes each Affiliate of a Lender that is party to a Lender Rate Contract or providing any Lender Bank Products as set forth in the definition of “Lender”) with respect to the Vessels pledged as Collateral and Vessel Security Documents; provided, however, that the Security Trustee shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Article VII with respect to any acts taken or omissions suffered by the Security Trustee as fully as if the term “Administrative Agent” as used in this Article VII included the Security Trustee with respect to such acts or omissions, and (ii) as additionally provided herein with respect to the Security Trustee.

     7.02. Reliance by the Administrative Agent. The Administrative Agent, the L/C Issuer and the Swing Line Lender shall be entitled to rely upon any certificate, notice or other document (including any cable, telegram, facsimile or telex) believed by it in good faith to be genuine and correct and to have been signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the Administrative Agent with reasonable care. As to any other matters not expressly provided for by this Agreement, the Administrative Agent shall not be required to take any action or exercise any discretion, but shall be required to act or to refrain from acting upon instructions of the Required Lenders and shall in all cases be fully protected by the Lenders in acting, or in refraining from acting, hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders (or all Lenders if required by Section 8.04), and such instructions of the Required Lenders (or all the Lenders as the case may be) and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders.

     7.03. Defaults. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received a written notice from a Lender or the Borrowers, referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “Notice of Default”. If the Administrative Agent receives such a notice of the occurrence of a Default or Event of Default, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders; provided, however, that until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interest of the Lenders. Notwithstanding anything to the contrary contained herein, the order and manner in which the Lenders’ rights and remedies are to be exercised (including, without limitation, the enforcement by any Lender of its Note) shall be determined by the Required Lenders in their sole discretion.

     7.04. Indemnification. Without limiting the Obligations of the Borrowers hereunder, each Lender agrees to indemnify the Administrative Agent, ratably in accordance with its Revolving Proportionate Share of all Obligations and Revolving Loan Commitments, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof; provided, however, that no Lender shall be liable for any of the foregoing to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen from the Administrative Agent’s gross negligence or willful misconduct. The Administrative Agent shall be fully justified in refusing to take or in continuing to take any action hereunder unless it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The obligations of each Lender under this Section 7.04 shall survive the payment and performance of the Obligations, the termination of this Agreement and any Lender ceasing to be a party to this Agreement (with respect to events which occurred prior to the time such Lender ceased to be a Lender hereunder).

     7.05. Non-Reliance. Each Lender represents that it has, independently and without reliance on the Administrative Agent, or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of the business, prospects, management, financial condition and affairs of the Loan Parties and its own decision to enter into this Agreement and agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own appraisals and decisions in taking or not taking action under this Agreement. Neither the Administrative Agent nor any of its affiliates nor any of their respective directors, officers, employees, agents or advisors shall (a) be required to keep any Lender informed as to the performance or observance by any Loan Party of the obligations under this Agreement or any other document referred to or provided for herein or to make inquiry of, or to inspect the properties or books of any Loan Party; (b) have any duty or responsibility to disclose to or otherwise provide any Lender, and shall not be liable for the

failure to disclose or otherwise provide any Lender, with any credit or other information concerning any Loan Party which may come into the possession of the Administrative Agent or that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity, except for notices, reports and other documents and information expressly required to be furnished to the Lenders by the Administrative Agent hereunder; or (c) be responsible to any Lender for (i) any recital, statement, representation or warranty made by any Loan Party or any officer, employee or agent of any Loan Party in this Agreement or in any of the other Credit Documents, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any Credit Document, (iii) the value or sufficiency of the Collateral or the validity or perfection of any of the liens or security interests intended to be created by the Credit Documents, or (iv) any failure by any Loan Party to perform its obligations under this Agreement or any other Credit Document.

     7.06. Resignation of the Administrative Agent. The Administrative Agent may resign at any time by giving thirty (30) days prior written notice thereof to the Borrowers and the Lenders. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent, which successor Administrative Agent, if not a Lender, shall be reasonably acceptable to the Borrowers; provided, however, that the Borrowers shall have no right to approve a successor Administrative Agent if a Default or Event of Default has occurred and is continuing. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from the duties and obligations thereafter arising hereunder; provided that the retiring Administrative Agent shall be discharged from the duties and obligations arising hereunder from and after the end of such thirty (30) day even if no successor has been appointed. If no such successor has been appointed, the Required Lenders shall act as the Administrative Agent hereunder. After any retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions of this Article VII shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent. The successor Administrative Agent (or if there is no successor one of the Lenders appointed by the Required Lenders that accepts such appointment) shall also simultaneously replace the then existing Administrative Agent and the then existing Administrative Agent shall be fully released as “L/C Issuer,” “Security Trustee” and “Swing Line Lender” hereunder pursuant to documentation in form and substance reasonably satisfactory to the then existing Administrative Agent.

     7.07. Collateral Matters.

          (a) The Administrative Agent and the Security Trustee are each hereby authorized by each Lender, without the necessity of any notice to or further consent from any Lender, and without the obligation to take any such action, to take any action with respect to any Collateral or any Security Document which may from time to time be necessary to perfect and maintain perfected the Liens of the Security Documents.

          (b) The Lenders irrevocably authorize the Administrative Agent and the Security Trustee, at its respective option and in its respective discretion, to release (and to execute and deliver such documents, instruments and agreements as the Administrative Agent

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and the Security Trustee (as applicable) may deem necessary to release) any Lien granted to or held by the Administrative Agent or the Security Trustee upon any Collateral (i) upon termination of the Revolving Loan Commitments and the full Cash Collateralization of the then outstanding L/C Obligations and the payment in full of all Loans and all other Obligations payable under this Agreement and under the other Credit Documents; (ii) constituting property of the Loan Parties which is sold, transferred or otherwise disposed of in connection with any transaction not prohibited by this Agreement or the Credit Documents (including Section 5.02(c)); (iii) constituting property leased to the Loan Parties under an operating lease which has expired or been terminated in a transaction not prohibited by this Agreement or the Credit Documents or which will concurrently expire and which has not been and is not intended by the Loan Parties to be, renewed or extended; (iv) consisting of an instrument, if the Indebtedness evidenced thereby has been paid in full; or (v) if approved or consented to by those of the Lenders required by Section 8.04. Upon request by the Administrative Agent or the Security Trustee, the Lenders will confirm in writing the Administrative Agent’s and the Security Trustee’s authority to release particular types or items of Collateral pursuant to this Section 7.07.

          (c) Unless all the Lenders otherwise consent in writing, any and all cash collateral for the Obligations shall be released to the Borrowers, to the extent not applied to the Obligations, only if (i) the Revolving Loan Commitments have been terminated (ii) all Obligations have been paid in full and are no longer outstanding, including, without limitation, any L/C Obligations or any other contingent obligations.

     7.08. Performance of Conditions. For the purpose of determining fulfillment by the Borrower and the other Loan Parties of conditions precedent specified in Sections 3.01 and 3.02 only, each Lender shall be deemed to have consented to, and approved or accepted, or to be satisfied with each document or other matter sent by the Administrative Agent to such Lender for consent, approval, acceptance or satisfaction, or required under Article 3 to be consented to, or approved by or acceptable or satisfactory to, that Lender, unless an officer of the Administrative Agent who is responsible for the transactions contemplated by the Credit Documents shall have received written notice from that Lender prior to the making of the requested Loan or the issuance of the requested Letter of Credit specifying its objection thereto and either (i) such objection shall not have been withdrawn by written notice to the Administrative Agent or (ii) in the case of any condition to the making of a Loan, that Lender shall not have made available to the Administrative Agent that Lender’s Revolving Proportionate Share of such Loan or Letter of Credit.

     7.09. The Administrative Agent in its Individual Capacity. The Administrative Agent and its affiliates may make loans to, issue letters of credit for the account of, accept deposits from and generally engage in any kind of banking or other business with the any Loan Party and its Affiliates as though the Administrative Agent were not the Administrative Agent, L/C Issuer or Swing Line Lender hereunder. With respect to Loans, if any, made by the Administrative Agent in its capacity as a Lender, the Administrative Agent in its capacity as a Lender shall have the same rights and powers under this Agreement and the other Credit Documents as any other Lender and may exercise the same as though it were not the Administrative Agent, L/C Issuer or Swing Line Lender, and the terms “Lender” or “Lenders” shall include the Administrative Agent in its capacity as a Lender. The Administrative Agent shall not be deemed to hold a fiduciary,

trust or other special relationship with any Lender and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Administrative Agent.

     7.10. Collateral Matters/Lender Rate Contracts. Each Lender on its own behalf on behalf of its Affiliates understands and agrees that if the Obligations are repaid as described in Section 7.07, the Collateral will be released as described in Section 7.07 and such Lender and its Affiliates will no longer have the benefits of the Collateral.

     7.11. NRG Intercreditor Agreement. Each of the Lenders from time to time party to this Agreement hereby confirms and reaffirms the irrevocable authority of the Administrative Agent and the Security Trustee to execute, deliver and act on their behalf under, the NRG Intercreditor Agreement and each supplement, modification, amendment, restatement or extension thereto approved by the Required Lenders. Each Lender agrees to be bound by the terms and provisions of the NRG Intercreditor Agreement.

ARTICLE VIII. MISCELLANEOUS.

     8.01. Notices.

          (a) Except as otherwise provided herein, all notices, requests, demands, consents, instructions or other communications to or upon the Borrowers, any Lender or the Administrative Agent under this Agreement or the other Credit Documents shall be in writing and faxed, mailed or delivered, if to the Borrowers or to the Administrative Agent, the L/C Issuer or the Swing Line Lender, at its respective facsimile number or address set forth below or, if to any Lender, at the address or facsimile number specified for such Lender in Part B of Schedule I (or to such other facsimile number or address for any party as indicated in any notice given by that party to the other parties). All such notices and communications shall be effective (a) when sent by an overnight courier service of recognized standing, on the second Business Day following the deposit with such service; (b) when mailed, first-class postage prepaid and addressed as aforesaid through the United States Postal Service, upon receipt; (c) when delivered by hand, upon delivery; and (d) when sent by facsimile transmission, upon confirmation of receipt; provided, however, that (1) any notice delivered to the Administrative Agent, the L/C Issuer or the Swing Line Lender under Article II shall not be effective until actually received by such Person, (2) the e-mail or other web-based communication expressly permitted under Sections 2.01 shall no longer be permitted if the Administrative Agent has notified the Borrowers that it is incapable of receiving such notices and communications by e-mail or other web-based communication and (3) unless the Administrative Agent otherwise prescribes, notices and other web-based communication sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement (it being understood that an “auto-response” shall not constitute any such written acknowledgement)), provided that if such e-mail notice or other web-based communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

		The Administrative Agent, the Security Trustee,
		the L/C Issuer and
		the Swing Line Lender:		For Notices of Borrowing, Notices of Conversion and Notices of Interest Period Selection:
				▇▇▇▇▇ Fargo Bank, National Association
				MAC ▇▇▇▇▇-▇▇▇
				▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
				▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
				Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
				Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
				Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ E-mail: ▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
				For all other notices:
				▇▇▇▇▇ Fargo Bank, National Association
				▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
				▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
				Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
				Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
				Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
				E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
		The Borrowers:		American Commercial Lines LLC
				▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
				▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
				Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President & Treasurer
				Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
				Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
		With copy to:		▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
				▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
				▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
				Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
				Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
				Fax No. (▇▇▇) ▇▇▇-▇▇▇▇

Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period Selection shall be given by the Borrowers to the Administrative Agent’s office located at the address referred to above during the Administrative Agent’s normal business hours; provided, however, that any such notice received by the Administrative Agent after 1:00 p.m. on any Business Day shall be deemed received by the Administrative Agent on the next Business Day. In any case where this Agreement authorizes notices, requests, demands or other communications by the Borrowers to the Administrative Agent or any Lender to be made by telephone or facsimile, the

Administrative Agent or any Lender may conclusively presume that anyone purporting to be a person designated in any incumbency certificate or other similar document received by the Administrative Agent or a Lender is such a person.

          (b) The Borrowers agree that the Administrative Agent may make any material delivered by the Borrowers to the Administrative Agent, as well as any amendments, waivers, consents, and other written information, documents, instruments and other materials relating to the Borrowers or any other Loan Party, or any other materials or matters relating to this Agreement, the other Credit Documents or any of the transactions contemplated hereby (collectively, the “Communications”) available to the Lenders by posting such notices on an electronic delivery system (which may be provided by the Administrative Agent, an Affiliate of the Administrative Agent, or any Person that is not an Affiliate of the Administrative Agent), such as IntraLinks, or a substantially similar electronic system (the “Platform”). The Borrowers acknowledge that (i) the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness, sufficiency, or sequencing of the Communications posted on the Platform. The Administrative Agent and its Affiliates expressly disclaim with respect to the Platform any liability for errors in transmission, incorrect or incomplete downloading, delays in posting or delivery, or problems accessing the Communications posted on the Platform and any liability for any losses, costs, expenses or liabilities that may be suffered or incurred in connection with the Platform. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by the Administrative Agent or any of its Affiliates in connection with the Platform. Each Lender agrees that notice to it (as provided in the next sentence) (a “Notice”) specifying that any Communication has been posted to the Platform shall for purposes of this Agreement constitute effective delivery to such Lender of such information, documents or other materials comprising such Communication. Each Lender agrees (i) to notify, on or before the date such Lender becomes a party to this Agreement, the Administrative Agent in writing of such Lender’s e-mail address to which a Notice may be sent (and from time to time thereafter to ensure that the Administrative Agent has on record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such e-mail address.

     8.02. Expenses. The Borrowers shall pay on demand, whether or not any Credit Event occurs hereunder, (a) all reasonable fees and expenses, including reasonable syndication expenses, travel expenses, attorneys’, consultants’ and experts’ fees and expenses, incurred by the Administrative Agent or the Security Trustee in connection with the syndication of the facilities provided hereunder, the preparation, negotiation, execution and delivery of, and the exercise of its duties under, this Agreement and the other Credit Documents, and the preparation, negotiation, execution and delivery of amendments and waivers hereunder and thereunder, (b) all reasonable fees and expenses of the Administrative Agent in connection with the use of any Platform and (c) all fees and expenses, including attorneys’ fees and expenses, incurred by the Administrative Agent, the Security Trustee and the Lenders in the enforcement or attempted enforcement of any of the Obligations or in preserving any of the Administrative Agent’s, the Security Trustee’s or the Lenders’ rights and remedies (including, without limitation, all such

fees and expenses incurred in connection with any “workout” or restructuring affecting the Credit Documents or the Obligations or any bankruptcy or similar proceeding involving any Loan Party). The obligations of the Borrowers under this Section 8.02 shall survive the payment and performance of the Obligations and the termination of this Agreement.

     8.03. Indemnification. To the fullest extent permitted by law, and in addition to any other indemnity set forth in the Credit Documents, the Borrowers agree to protect, indemnify, defend and hold harmless the Administrative Agent, the Security Trustee, the L/C Issuer, the Swing Line Lender, the Lenders and their Affiliates and their respective directors, officers, employees, attorneys, agents, trustees and advisors (collectively, “Indemnitees”) from and against any and all liabilities, obligations, losses, damages, penalties, judgments, costs, disbursements, claims or expenses of any kind or nature and from any suits, claims or demands (including in respect of or for reasonable attorneys’ fees and other expenses) arising on account of or in connection with any matter or thing or action or failure to act by Indemnitees, or any of them, arising out of or relating to (a) the Credit Documents or any transaction contemplated thereby or related thereto, including the making of any Loans, the funding of any Unreimbursed Amounts and any use by a Borrower of any proceeds of the Loans or the Letters of Credit, (b) any Environmental Damages, (c) any claims for brokerage fees or commissions in connection with the Credit Documents or any transaction contemplated thereby or in connection with a Borrower’s failure to conclude any other financing, and to reimburse each Indemnitee on demand for all legal and other expenses incurred in connection with investigating or defending any of the foregoing, (d) any Permitted Acquisition or attempted acquisition, merger, consolidation or takeover (hostile or otherwise) involving any Loan Party or (e) the use of any Platform; provided, however, that nothing contained in this Section 8.03 shall obligate the Borrowers to protect, indemnify, defend or hold harmless any Indemnitee against any such liabilities, obligations, losses, damages, penalties, judgments, costs, disbursements, claims or expenses (“Losses”) to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct of such Indemnitee or any Losses arising from disputes among one or more Indemnitees. Upon receiving knowledge of any suit, claim or demand asserted by a third party that the Administrative Agent, the Security Trustee or any Lender believes is covered by this indemnity, the Administrative Agent, the Security Trustee or such Lender shall give the Borrowers notice of the matter and the Administrative Agent, the Security Trustee or such Lender may select its own counsel or request that the Borrowers defend such suit, claim or demand, with legal counsel satisfactory to the Administrative Agent, the Security Trustee or such Lender as the case may be, at the Borrowers’ sole cost and expense; provided, however, that the Administrative Agent, the Security Trustee or such Lender shall not be required to so notify the Borrowers and the Administrative Agent or such Lender shall have the right to defend, at the Borrowers’ sole cost and expense, any such matter that is in connection with a formal proceeding instituted by any Governmental Authority having authority to regulate or oversee any aspect of the Administrative Agent’s, the Security Trustee’s or such Lender’s business or that of its Affiliates. The Administrative Agent, the Security Trustee or such Lender may also require the Borrowers to defend the matter. Notwithstanding the foregoing provisions, the Indemnitees will be entitled to employ counsel separate from counsel for the Borrowers and for any other party in such action if any such Indemnitee reasonably determines that a conflict of interest or other reasonable basis exists which makes representation by counsel chosen by the Borrowers not advisable, all at the Borrowers’ expense. In the event an Indemnitee (or any of its officers, directors or employees)

appears as a witness in any action or proceeding brought against the Borrowers in which an Indemnitee is not named as a defendant, the Borrowers agree to reimburse such Indemnitee for all out-of-pocket expenses incurred by it (including fees and expenses of counsel) in connection with its appearing as a witness. Any failure or delay of the Administrative Agent, the Security Trustee or any Lender to notify the Borrowers of any such suit, claim or demand shall not relieve the Borrowers of their obligations under this Section 8.03. No Indemnitee referred to above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence of willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction. The obligations of the Borrowers under this Section 8.03 shall survive the payment and performance of the Obligations and the termination of this Agreement.

     8.04. Waivers; Amendments. Any term, covenant, agreement or condition of this Agreement or any other Credit Document may be amended or waived, and any consent under this Agreement or any other Credit Document may be given, if such amendment, waiver or consent is in writing and is signed by the Borrowers and the Required Lenders (or the Administrative Agent on behalf of the Required Lenders with the written approval of the Required Lenders); provided, however, that:

          (a) Any amendment, waiver or consent which would (i) amend the definition of “Required Lenders”, or modify in any other manner the number or percentage of the Lenders required to make any determinations or to waive any rights under, or to modify any provision of, this Agreement, (ii) increase the Total Revolving Loan Commitment (other than pursuant to Section 2.01(b)), (iii) extend the Maturity Date, (iv) reduce the principal of or interest on any Loan or L/C Borrowing or any fees or other amounts payable for the account of the Lenders hereunder (provided that it is understood that any additional add backs agreed to pursuant to clause (b)(vii) of the definition of Adjusted EBITDA shall not be deemed to be a reduction of interest), (v) extend any date fixed for any payment of the principal of or interest on any Loans or any fees or other amounts payable for the account of the Lenders, (vi) amend this Section 8.04 or Section 2.10, or (vii) release any Borrower or Guarantor, must be in writing and signed or approved in writing by all of the Lenders (or the Administrative Agent on behalf of all of the Lenders with the written approval of all of the Lenders);

          (b) Any amendment, waiver or consent which releases any substantial part of the Collateral must be in writing and signed or approved in writing by all Lenders (or the Administrative Agent on behalf of all of the Lenders with the written approval of all of the Lenders), except that (i) any release in connection with a sale or other disposition of Collateral authorized by Section 5.02(c) shall not require the approval of any Lenders and (ii) any amendment, waiver or consent which modifies the terms of Section 5.02(c) (including any modification relating to the prepayment of proceeds from any such sale or other disposition) shall require the consent of the Required Lenders (or the Administrative Agent on behalf of the Required Lenders with the written approval of the Required Lenders);

          (c) Any amendment, waiver or consent which increases or decreases the Revolving Proportionate Share of any Lender must be in writing and signed by such Lender;

          (d) Any amendment, waiver or consent which affects the rights or duties of the Swing Line Lender under this Agreement must be in writing and signed by the Swing Line Lender;

          (e) Any amendment, waiver or consent which affects the rights or duties of the L/C Issuer under this Agreement or any Letter of Credit Application relating to any Letter of Credit issued or to be issued by it must be in writing and signed by the L/C Issuer;

          (f) Any amendment, waiver or consent which affects the rights or obligations of the Administrative Agent must be in writing and signed by the Administrative Agent;

          (g) Any amendment, waiver or consent which affects the rights or obligations of the Security Trustee must be in writing and signed by the Security Trustee; and

          (h) Any additional add backs agreed to pursuant to clause (b)(vii) of the definition of Adjusted EBITDA shall not require the consent of the Required Lenders except as specifically set forth in such clause (b)(vii) and such clause may not be amended or modified without the prior written consent of the Administrative Agent.

No failure or delay by the Administrative Agent, the Security Trustee or any Lender in exercising any right under this Agreement or any other Credit Document shall operate as a waiver thereof or of any other right hereunder or thereunder nor shall any single or partial exercise of any such right preclude any other further exercise thereof or of any other right hereunder or thereunder. Unless otherwise specified in such waiver or consent, a waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given. The Lenders may condition the giving or making of any amendment, waiver or consent of any term, covenant, agreement or condition of this Agreement or any other Credit Document on payment of a fee by the Borrowers.

In connection with any such proposed amendment, modification, waiver or termination requiring the consent of all Lenders (such proposed amendment, modification, waiver or termination, a “Proposed Change”), if the consent of the Required Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 8.04 being referred to as a “Non-Consenting Lender”), then, so long as the Lender that is acting as the Administrative Agent is not a Non-Consenting Lender and provided no Event of Default has occurred and is continuing, at the Borrowers request, the Lender that is acting as the Administrative Agent or an Eligible Assignee that is acceptable to the Administrative Agent shall have the right with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent’s request, sell and assign to the Lender that is acting as the Administrative Agent or such Eligible Assignee, all of its rights and obligations under this Agreement and the other Credit Documents (including for purposes of this paragraph, the Revolving Loan Commitments, the Revolving Loans, L/C Advances, and participations in Swing Line Loans) for

an amount equal to the principal balance of all Revolving Loans, L/C Advances and aggregate amounts funded under Section 2.03(c)(ii) in respect of Swing Line Loans, by the Non-Consenting Lender and all accrued interest and fees with respect thereto through the date of sale (or such other amounts as may be agreed upon by the Non-Consenting Lender and the assignee). In such event, such Non-Consenting Lender agrees to execute an Assignment Agreement to reflect such purchase and sale, but regardless of whether such Assignment Agreement is executed, such Non-Consenting Lender’s rights hereunder, except rights under Section 8.03 with respect to actions prior to such date, shall cease from and after the date of tender by the purchaser of the amount of the purchase price.

     8.05. Successors and Assigns.

          (a) Binding Effect. This Agreement and the other Credit Documents shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent, the Security Trustee, all future holders of the Notes and their respective successors and permitted assigns, except that no Loan Party may assign or transfer any of its rights or obligations under any Credit Document without the prior written consent of the Administrative Agent, the Security Trustee and each Lender. Any purported assignment or transfer by a Loan Party in violation of the foregoing shall be null and void.

          (b) Participations. Any Lender may, without notice to or consent of the Borrowers, at any time sell to one or more banks or other financial institutions (“Participants”) participating interests in all or a portion of any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender under this Agreement and the other Credit Documents (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans). In the event of any such sale by a Lender of participating interests, such Lender’s obligations under this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of its Notes for all purposes under this Agreement and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement pursuant to which any such sale is effected may require the selling Lender to obtain the consent of the Participant in order for such Lender to agree in writing to any amendment, waiver or consent of a type specified in clause (i), (ii), (iii), (iv), (v) or (vii) of Section 8.04(a) or Section 8.04(b) but may not otherwise require the selling Lender to obtain the consent of such Participant to any other amendment, waiver or consent hereunder. The Borrowers agree that if amounts outstanding under this Agreement and the other Credit Documents are not paid when due (whether upon acceleration or otherwise), each Participant shall, to the fullest extent permitted by law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any other Credit Documents to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any other Credit Documents; provided, however, that (i) no Participant shall exercise any rights under this sentence without the consent of the Administrative Agent, (ii) no Participant shall have any rights under this sentence which are greater than those of the selling Lender and (iii) such rights of setoff shall be subject to the obligation of such Participant to share the payment so obtained with all of the Lenders as provided in Section 2.10(b). The Borrowers also agree that any Lender which has transferred any participating interest in its Commitment or

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Loans shall, notwithstanding any such transfer, be entitled to the full benefits accorded such Lender under Sections 2.11, 2.12 and 2.13, as if such Lender had not made such transfer.

          (c) Assignments. Any Lender may, at any time, sell and assign to any Lender or any Eligible Assignee (individually, an “Assignee Lender”) all or a portion of its rights and obligations under this Agreement and the other Credit Documents (including for purposes of this subsection (c), participations in L/C Obligations and in Swing Line Loans) (such a sale and assignment to be referred to herein as an “Assignment”) pursuant to an assignment agreement in substantially the form of Exhibit I (an “Assignment Agreement”) (which Assignment Agreement shall include an acknowledgment by the Assignee party thereto that it has received a copy of and is subject to the terms of the NRG Intercreditor Agreement), executed by each Assignee Lender and such assignor Lender (an “Assignor Lender”) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided, however, that:

               (i) Without the written consent of the Administrative Agent and, if no Event of Default has occurred and is continuing, the Borrowers (which consent of the Administrative Agent and the Borrowers shall not be unreasonably withheld or delayed), no Lender may make any Assignment to any Assignee Lender which is not, immediately prior to such Assignment, a Lender hereunder or an Affiliate thereof or Approved Fund as to such Lender;

               (ii) Without the written consent of (1) the Administrative Agent, (2) if such Assignment would result in the Assignee Lender becoming a Lender, the L/C Issuer and the Swing Line Lender, and (3) if no Event of Default has occurred and is continuing, the Borrowers (which consents shall not be unreasonably withheld or delayed), no Lender may make any Assignment to any Assignee Lender (I) that is less than Five Million Dollars ($5,000,000) in the aggregate or (II) if, after giving effect to such Assignment, the Commitment or Loans of such Lender or such Assignee Lender would be less than Five Million Dollars ($5,000,000) (except that, in each case, a Lender may make an Assignment which reduces its Commitment or Loans to zero without the written consent of the Borrowers and the Administrative Agent except to the extent such written consent is required by clause (i) above and clause (iii) below); and

               (iii) Without the written consent of the Administrative Agent and, if no Default or Event of Default has occurred and is continuing, the Borrower (which consent of the Administrative Agent and the Borrower shall not be unreasonably withheld or delayed), no Lender may make any Assignment which does not assign and delegate an equal pro rata interest in such Lender’s Revolving Loans, Revolving Loan Commitment and all other rights, duties and obligations of such Lender under this Agreement and the other Credit Documents.

Upon such execution, delivery, acceptance and recording of each Assignment Agreement, from and after the Assignment Effective Date determined pursuant to such Assignment Agreement, (A) each Assignee Lender thereunder shall be a Lender hereunder with a Revolving Loan Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement and shall have the rights, duties and obligations of such a Lender under this Agreement and the other Credit Documents, and (B) the Assignor Lender thereunder shall be a Lender with a Revolving Loan Commitment and Loans as set forth on Attachment 1 to such Assignment Agreement or, if the Revolving Loan Commitment and Loans of the Assignor Lender have been reduced to $0,

the Assignor Lender shall cease to be a Lender and to have any obligation to make any Loan; provided, however, that any such Assignor Lender which ceases to be a Lender shall continue to be entitled to the benefits of any provision of this Agreement which by its terms survives the termination of this Agreement. Each Assignment Agreement shall be deemed to amend Schedule I to the extent, and only to the extent, necessary to reflect the addition of each Assignee Lender, the deletion of each Assignor Lender which reduces its Revolving Loan Commitment and Loans to $0 and the resulting adjustment of Revolving Loan Commitment and Loans arising from the purchase by each Assignee Lender of all or a portion of the rights and obligations of an Assignor Lender under this Agreement and the other Credit Documents. On or prior to the Assignment Effective Date determined pursuant to each Assignment Agreement, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Revolving Loan Note of the Assignor Lender thereunder, a new Revolving Loan Note to each Assignee Lender thereunder that requests such a note (with each new Revolving Loan Note to be in an amount equal to the Revolving Loan Commitment assumed by such Assignee Lender) and, if the Assignor Lender is continuing as a Lender hereunder, a new Revolving Loan Note to the Assignor Lender if so requested by such Assignor Lender (with the new Revolving Loan Note to be in an amount equal to the Revolving Loan Commitment retained by it). Each such new Revolving Loan Note shall be dated the Closing Date, and each such new Note shall otherwise be in the form of the Note replaced thereby. The Notes surrendered by the Assignor Lender shall be returned by the Administrative Agent to the Borrowers marked “Replaced”. Each Assignee Lender which was not previously a Lender hereunder and which is not incorporated under the laws of the United States of America or a state thereof shall, within three (3) Business Days of becoming a Lender, deliver to the Borrowers and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or successor applicable form), as the case may be, certifying in each case that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes, but only if and to the extent such Lender is legally entitled to do so and if such Lender is unable to, such Lender (other than an assignee pursuant to a request by the Borrowers under Section 2.15) shall not be entitled to indemnification for Taxes under Section 2.12 greater than that to which its assignor was entitled immediately preceding such Assignment.

Notwithstanding anything to the contrary contained herein, if at any time ▇▇▇▇▇ Fargo assigns all of its Revolving Loan Commitment and Loans pursuant to subsection (c) above, ▇▇▇▇▇ Fargo may, (i) upon 30 days’ notice to the Borrowers and the Lenders, resign as L/C Issuer and/or (ii) upon five Business Days’ notice to the Borrowers, terminate the Swing Line. In the event of any such resignation as L/C Issuer or termination of the Swing Line, the Borrowers shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrowers to appoint any such successor shall affect the resignation of ▇▇▇▇▇ Fargo as L/C Issuer or the termination of the Swing Line, as the case may be. ▇▇▇▇▇ Fargo shall retain all the rights and obligations of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund participations in Unreimbursed Amounts pursuant to Section 2.02(c)). If ▇▇▇▇▇ Fargo terminates the Swing Line, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such termination, including the right to require

the Lenders to make Base Rate Loans or fund participations in outstanding Swing Line Loans pursuant to Section 2.03(c).

It is intended that no Lender (other than the Lender serving as the Administrative Agent) have a Revolving Loan Commitment (or if the Revolving Loan Commitments have been terminated, principal amount of the Obligations) (collectively, a “Revolving Loan Hold Level”) that is equal to or greater than the Revolving Loan Hold Level of the Lender serving as the Administrative Agent. If at any time any Lender (other than the Lender serving as the Administrative Agent) shall have a Revolving Loan Hold Level that is equal to or greater than the Revolving Loan Hold Level of the Lender serving as the Administrative Agent (as such Revolving Loan Hold Level of the Lender serving as the Administrative Agent was in effect on the Closing Date or if increased, as in effect from time to time), such Lender shall notify the Borrowers and the Administrative Agent in writing of such circumstance. The Borrowers shall have the right to request that such Lender use commercially reasonable efforts to assign that portion of its Revolving Loan Hold Level and related interests which is equal to or exceeds the Administrative Agent’s Revolving Loan Hold Level (as in effect on the Closing date, or if increased, as in effect at such time), as contemplated in this Section 8.05(c) (with the registration and processing fee related to any assignment requested under this paragraph to be paid or waived by the Administrative Agent and the reasonable costs related to the preparation of each Assignment Agreement by the Administrative Agent’s legal counsel for any assignment requested under this paragraph to be paid by the Administrative Agent) to Eligible Assignees, so as to cause such Lender’s Revolving Loan Hold Level to be less than the Revolving Loan Hold Level of the Lender serving as the Administrative Agent (as such Revolving Loan Hold Level of the Lender serving as the Administrative Agent was in effect on the Closing Date or if increased, as in effect at such time).

Notwithstanding anything set forth in this Section 8.5(c) to the contrary, in no event shall any Lender be required to assign its Revolving Loan Hold Level and related interests if such Lender would incur a loss as a result of such assignment.

          (d) Register. The Administrative Agent shall maintain at its address referred to in Section 8.01 a copy of each Assignment Agreement delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Loan Commitment or Loans of each Lender from time to time. The entries in the Register shall be conclusive in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loans recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.

          (e) Registration. Upon its receipt of an Assignment Agreement executed by an Assignor Lender and an Assignee Lender (and, to the extent required by Section 8.05(c), by the Borrowers and the Administrative Agent) together with payment to the Administrative Agent by Assignor Lender of a registration and processing fee of $3,500, the Administrative Agent shall (i) promptly accept such Assignment Agreement and (ii) on the Assignment Effective Date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrowers. The Administrative Agent may, from time to time at its election, prepare and deliver to the Lenders and the

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Borrowers a revised Schedule I reflecting the names, addresses and Revolving Loan Commitment or Loans of all Lenders then parties hereto (and in any event Schedule I shall be deemed amended to reflect any assignment consummated pursuant to the terms of this Agreement or upon any Lender becoming a party to this Agreement by any other means (including pursuant to a joinder as contemplated by Section 2.01(b).

          (f) Confidentiality. Subject to Section 8.10, the Administrative Agent, the Security Trustee and the Lenders may disclose the Credit Documents and any financial or other information relating to the Loan Parties to each other or to any potential Participant or Assignee Lender.

          (g) Pledges to Federal Reserve Banks; Other Pledges of Notes. Notwithstanding any other provision of this Agreement, any Lender may at any time assign all or a portion of its rights under this Agreement and the other Credit Documents to a Federal Reserve Bank. No such assignment shall relieve the assigning Lender from its obligations under this Agreement and the other Credit Documents. In the case of any Lender that is a Fund, such Lender may (i) assign or pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under any indenture to which such Lender is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (ii) pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to its lenders for collateral security purpose; provided, however, no such pledgee under clause (i) or (ii) shall become a Lender hereunder (by foreclosure, transfer in lieu of foreclosure or otherwise) unless and until it complies with the assignment provisions of this Agreement to become a Lender hereunder and has received all consents required hereunder.

          (h) Assignments by ▇▇▇▇▇ Fargo. Notwithstanding any provision in this Section 8.05 to the contrary, no Assignment by ▇▇▇▇▇ Fargo shall be subject to the requirements set forth in clauses (i), (ii) and (iii) of the proviso of Section 8.05(c) until the syndication of the Revolving Loan Commitments and the Loans has been completed in accordance with the terms and subject to the limitations in the Administrative Agent’s Fee Letter, and no registration or processing fee shall be payable in connection with any such Assignment by ▇▇▇▇▇ Fargo.

          (i) True Sale. All participations in the Obligations or any portion thereof, whether pursuant to provisions hereof or otherwise, are intended to be “true sales” for purposes of financial reporting in accordance with Statement of Financial Accounting Standards No. 140. Accordingly, the L/C Issuer or any Lender that sells or is deemed to have sold a participation in the Obligations (including any participations in Letters of Credit and/or Loans, any participations described in clause (b) above and any participations under Section 2.10(b)) (each a “Participation Seller”) hereby agrees that if such Participation Seller receives any payment in respect of the Obligations to which such participation relates through the exercise of setoff by such Participation Seller against the Borrowers or any other obligor, then such Participation Seller agrees to promptly pay to the participating party in such participation such participant’s pro rata share of such setoff (after giving effect to any sharing with the Lenders under Section 2.10(b) hereof).

     8.06. Setoff; Security Interest.

          (a) Setoffs By Lenders. In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, with the prior consent of the Administrative Agent but without prior notice to or consent of the Borrowers, any such notice and consent being expressly waived by the Borrowers to the extent permitted by applicable law, upon the occurrence and during the continuance of an Event of Default, to set-off and apply against the Obligations any amount owing from such Lender to the Borrowers. The aforesaid right of set-off may be exercised by such Lender against the Borrowers or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver or execution, judgment or attachment creditor of the Borrowers or against anyone else claiming through or against the Borrowers or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off may not have been exercised by such Lender at any prior time. Each Lender agrees promptly to notify the Borrowers after any such set-off and application made by such Lender; provided, that the failure to give such notice shall not affect the validity of such set-off and application.

          (b) Security Interest. As security for the Obligations, the Borrowers hereby grant to the Administrative Agent, the Security Trustee and each Lender, for the benefit of the Administrative Agent, the Security Trustee and the Lenders, a continuing security interest in any and all deposit accounts or moneys of a Borrower now or hereafter maintained with such Lender. Each Lender shall have all of the rights of a secured party with respect to such security interest.

     8.07. No Third Party Rights. Nothing expressed in or to be implied from this Agreement is intended to give, or shall be construed to give, any Person, other than the parties hereto and their permitted successors and assigns hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this Agreement or under or by virtue of any provision herein.

     8.08. Partial Invalidity. If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law or any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby.

     8.09. Jury Trial. EACH OF THE BORROWERS, THE LENDERS, THE ADMINISTRATIVE AGENT AND THE SECURITY TRUSTEE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT.

     8.10. Confidentiality. Neither any Lender nor the Administrative Agent nor the Security Trustee shall disclose to any Person any Confidential Information, except that any Lender, the Security Trustee or the Administrative Agent may disclose any such information (a) to its own directors, officers, employees, auditors, counsel and other advisors and to its

Affiliates; (b) to any other Lender, the Trade Bank, the Security Trustee or the Administrative Agent; (c) which is otherwise known or available to the public or which is otherwise known to the receiving party prior to the time such Confidential Information was delivered to any Lender, the Security Trustee or the Administrative Agent; (d) if required or appropriate in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over such Lender, the Security Trustee or the Administrative Agent; (e) if required in response to any summons or subpoena; (f) in connection with any enforcement by the Lenders, the Security Trustee and the Administrative Agent of their rights under this Agreement or the other Credit Documents or any litigation among the parties relating to the Credit Documents or the transactions contemplated thereby; (g) to comply with any Requirement of Law applicable to such Lender, the Security Trustee or the Administrative Agent; (h) to any Assignee Lender or Participant or any prospective Assignee Lender or Participant; provided that such Assignee Lender or Participant or prospective Assignee Lender or Participant agrees to be bound by the provisions of (or provisions substantially similar to) this Section 8.10; or (i) otherwise with the prior consent of such Loan Party; provided, however, that any disclosure made in violation of this Agreement shall not affect the obligations of the Loan Parties under this Agreement and the other Credit Documents. Nothing in this Section 8.10 shall limit the use of any Platform as described in Section 8.01(b).

     8.11. Counterparts. This Agreement may be executed in any number of identical counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed original for all purposes. Transmission by telecopier of an executed counterpart of this Agreement shall be deemed to constitute due and sufficient delivery of such counterpart.

     8.12. Consent to Jurisdiction. Each of the parties to this Agreement irrevocably submits to the non-exclusive jurisdiction of the courts of the State of New York and the courts of the United States of America located in New York, New York and agrees that any legal action, suit or proceeding arising out of or relating to this Agreement or any of the other Credit Documents may be brought against such party in any such courts. In addition, the Borrower irrevocably submits to the non-exclusive jurisdiction of the courts of any State (each a “Real Property State”) where any real property described in any Real Property Security Agreement is located and the courts of the United States of America located in any such Real Property State and agrees that any legal action, suit or proceeding arising out of or relating to any Real Property Security Agreement related to real property located in a Real Property State may be brought against such party in any such courts in such Real Property State. Final judgment against any party in any such action, suit or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the judgment, or in any other manner provided by law. Nothing in this Section 8.12 shall affect the right of any party to commence legal proceedings or otherwise ▇▇▇ any other party in any other appropriate jurisdiction, or concurrently in more than one jurisdiction, or to serve process, pleadings and other papers upon any other party in any manner authorized by the laws of any such jurisdiction. The Borrowers agree that process served either personally or by registered mail shall, to the extent permitted by law, constitutes adequate service of process in any such suit. Each of the parties to this Agreement irrevocably waives to the fullest extent permitted by applicable law (a) any objection which it may have now or in the future to the laying of the venue of any such action, suit or proceeding in any court referred to in the first

sentence above; (b) any claim that any such action, suit or proceeding has been brought in an inconvenient forum; (c) its right of removal of any matter commenced by any other party in the courts of the State of New York or any Real Property State to any court of the United States of America; (d) any immunity which it or its assets may have in respect of its obligations under this Agreement or any other Credit Document from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process; and (e) any right it may have to require the moving party in any suit, action or proceeding brought in any of the courts referred to above arising out of or in connection with this Agreement or any other Credit Document to post security for the costs of any party or to post a bond or to take similar action.

     8.13. Relationship of Parties. The relationship between the Borrowers, on the one hand, and the Lenders, the Security Trustee and the Administrative Agent, on the other, is, and at all times shall remain, solely that of borrowers and lenders. None of the Lenders, the Security Trustee or the Administrative Agent shall under any circumstances be construed to be partners or joint venturers of the Borrowers or any of their Affiliates; nor shall the Lenders nor the Administrative Agent nor the Security Trustee under any circumstances be deemed to be in a relationship of confidence or trust or a fiduciary relationship with the Borrowers or any of their Affiliates, or to owe any fiduciary duty to the Borrowers or any of their Affiliates. The Lenders, the Security Trustee and the Administrative Agent do not undertake or assume any responsibility or duty to the Borrowers or any of their Affiliates to select, review, inspect, supervise, pass judgment upon or otherwise inform the Borrowers or any of their Affiliates of any matter in connection with its or their property, any security held by the Administrative Agent, the Security Trustee or any Lender or the operations of the Borrowers or any of their Affiliates. The Borrowers and each of their Affiliates shall rely entirely on their own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by any Lender, the Security Trustee or the Administrative Agent in connection with such matters is solely for the protection of the Lenders, the Security Trustee and the Administrative Agent and neither the Borrowers nor any of their Affiliates is entitled to rely thereon.

     8.14. Time. Time is of the essence as to each term or provision of this Agreement and each of the other Credit Documents.

     8.15. Waiver of Punitive Damages. Notwithstanding anything to the contrary contained in this Agreement, each Borrower hereby agrees that it shall not seek from the Lenders, the Security Trustee or the Administrative Agent punitive damages under any theory of liability.

     8.16. USA PATRIOT Act. Each Lender hereby notifies the Borrowers that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of the Borrowers and other information that will allow such Lender to identify the Borrowers in accordance with the Patriot Act.

     8.17. Clarification. Notwithstanding anything to the contrary, the parties hereto understand and agree that ▇▇▇▇▇ Fargo is acting in various capacities under this Agreement and the other Credit Documents and therefore shall be permitted to fulfill its roles and manage its

various duties hereunder in such manner as ▇▇▇▇▇ Fargo sees fit and, for the avoidance of doubt, in lieu of sending notices to itself when acting in different capacities ▇▇▇▇▇ Fargo may keep internal records regarding all such communications, notices and actions related to this Agreement and the other Credit Documents in accordance with its past practice.

     8.18. Waivers and Agreements of Borrowers. While not intended by the parties hereto, if it is determined that any Borrower is a surety of any other Borrower:

          (a) Without limiting the provisions of Section 1.13, the covenants, agreements and obligations of each Borrower set forth herein are joint and several and shall be primary obligations of such Borrower, and such obligations shall be absolute, unconditional and irrevocable, and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by, any circumstance or condition whatsoever, foreseeable or unforeseeable.

          (b) Each Borrower hereby waives (i) any right of redemption with respect to the Collateral after the sale hereunder, and all rights, if any, of marshalling of the Collateral or other collateral or security for the Obligations and (ii) any right (except as shall be required by applicable statute and cannot be waived) to require the Administrative Agent, the Security Trustee or any Lender to (A) proceed against any other Borrower or any other Person, (B) proceed against or exhaust any other collateral or security for any of the Obligations or (C) pursue any remedy in the Administrative Agent’s, the Security Trustee’s or any Lender’s power whatsoever. Each Borrower hereby waives any defense based on or arising out of any defense of any other Borrower or any other Person other than payment in full of the Obligations, including, without limitation, any defense based on or arising out of the disability of any other Borrower or any other Person, or the enforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower other than payment in full of the Obligations. The Administrative Agent and the Security Trustee may, at its respective election, foreclose on any security held by the Administrative Agent or the Security Trustee by one or more judicial or non-judicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent such sale is permitted by applicable law), or exercise any other right or remedy the Administrative Agent or the Security Trustee may have against any other Borrower or any other Person, or any security, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent the Obligations have been paid in full. Each Borrower waives all rights and defenses arising out of an election of remedies by the Administrative Agent or the Security Trustee, even though that election of remedies, such as nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against the other Borrower.

[The first signature page follows.]

     IN WITNESS WHEREOF, the Borrowers, the Lenders, the Administrative Agent, the Security Trustee, the L/C Issuer and the Swing Line Lender have caused this Agreement to be executed as of the day and year first above written.

		BORROWERS:
		AMERICAN COMMERCIAL LINES LLC,
		a Delaware limited liability company
		By:
		Name:
		Title:
		JEFFBOAT LLC,
		a Delaware limited liability company
		By:
		Name:
		Title:
		ACL TRANSPORTATION SERVICES LLC,
		a Delaware limited liability company (formerly known as Louisiana Dock Company LLC)
		By:
		Name:
		Title:

		ADMINISTRATIVE AGENT, SECURITY TRUSTEE, L/C ISSUER AND SWING LINE LENDER:
		▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Security Trustee, L/C Issuer and Swing Line Lender
		By:
		Name:
		Title:
		THE LENDERS:
		▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
		By:
		Name:
		Title:

		BANK OF AMERICA, N.A.
		By:
		Name:
		Title:

		BRANCH BANKING AND TRUST COMPANY
		By:
		Name:
		Title:

		FIFTH THIRD BANK
		By:
		Name:
		Title:

		FORTIS CAPITAL CORP.
		By:
		Name:
		Title:

		JPMORGAN CHASE BANK, N.A.
		By:
		Name:
		Title:

		LASALLE BANK NATIONAL ASSOCIATION
		By:
		Name:
		Title:

		NATIONAL CITY BANK
		By:
		Name:
		Title:

		PNC BANK, NATIONAL ASSOCIATION
		By:
		Name:
		Title:

		SUNTRUST BANK
		By:
		Name:
		Title:

		U.S. BANK NATIONAL ASSOCIATION
		By:
		Name:
		Title:

		WACHOVIA BANK, N.A.
		By:
		Name:
		Title:

The following is a brief description of the schedules and exhibits omitted from the Credit Agreement. The Company will supplementally provide the Securities and Exchange Commission with any omitted schedule or exhibit upon request.

SCHEDULES

SCHEDULE I -		THE LENDERS
SCHEDULE II -		EXISTING LETTERS OF CREDIT
SCHEDULE 1.01(A) -		REAL PROPERTY SECURITY DOCUMENTS
SCHEDULE 1.01(B) -		VESSEL SECURITY DOCUMENTS
SCHEDULE 3.01 -		CONDITIONS PRECEDENT
SCHEDULE 4.01(G) -		LITIGATION
SCHEDULE 4.01(H)(1) -		TOWBOATS, BARGES AND OTHER VESSELS
SCHEDULE 4.01(H)(2) -		VESSELS NOT DOCUMENTED UNDER U.S. LAW AND DRYDOCKS
SCHEDULE 4.01(H)(3) -		REAL PROPERTY
SCHEDULE 4.01(K) -		MULTIEMPLOYER PLANS
SCHEDULE 4.01(O) -		SUBSIDIARIES
SCHEDULE 4.01(U) -		INSURANCE
SCHEDULE 4.01(V) -		AGREEMENTS WITH AFFILIATES, ETC.
SCHEDULE 4.01(X) -		ENVIRONMENTAL MATTERS
SCHEDULE 5.02(A) -		EXISTING INDEBTEDNESS
SCHEDULE 5.02(B) -		EXISTING LIENS
SCHEDULE 5.02(E) -		EXISTING INVESTMENTS

EXHIBITS

EXHIBIT A		NOTICE OF LOAN BORROWING
EXHIBIT B		NOTICE OF CONVERSION
EXHIBIT C		NOTICE OF INTEREST PERIOD SELECTION
EXHIBIT D		NOTICE OF SWING LINE BORROWING
EXHIBIT E		REVOLVING LOAN NOTE
EXHIBIT F		VESSEL MORTGAGE
EXHIBIT G		NRG INTERCREDITOR AGREEMENT
EXHIBIT H		SWING LINE NOTE
EXHIBIT I		ASSIGNMENT AGREEMENT
EXHIBIT J		COMPLIANCE CERTIFICATE
EXHIBIT K		PERFECTION CERTIFICATE
EXHIBIT L		SECURITY AGREEMENT
EXHIBIT M		INTELLECTUAL PROPERTY SECURITY AGREEMENT
EXHIBIT N		CONTROL AGREEMENT
EXHIBIT O		GUARANTY